Delegates’ rights confirmed: the FWC expands powers of delegates in response to Full Federal Court decision

The scope of who delegates can represent is now much wider, and the rights of delegates to communicate and act on behalf of workers are stronger, following the Fair Work Commission implementing broader delegates' rights terms across all modern awards, in line with a recent Full Federal Court decision, with retrospective effect from 1 July 2024.

If your employees are covered by a modern award, or you’re currently bargaining for a new enterprise agreement, these changes have immediate and practical consequences.

Employers will need to review their policies, bargaining positions, and any new or recent enterprise agreements to both ensure compliance and avoid disputes or unenforceable clauses.

Why delegates' rights term became an issue

Amendments introduced by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Amending Act) inserted section 350C into the FW Act, establishing the rights of workplace delegates, and required the FWC to insert a delegates’ rights term into modern awards by 30 June 2024, operative from 1 July 2024.

Following these amendments, a Full Bench was constituted to consult and engage with stakeholders (which included consultation with peak councils and interested parties, consideration of submissions, consultation sessions and circulating / considering feedback on draft terms). Following this process, on 28 June 2024, the FWC decided to vary all 155 awards to include a standard term, and confirmed a review would occur after 12-months of operation.

Proceedings in the Federal Court of Australia

On 18 September 2024, the Construction, Forestry and Maritime Employees Union, Communications Electrical Plumbing Union and the Mining and Energy Union collectively filed two judicial review applications in the Federal Court of Australia in relation to 10 awards in the mining, energy construction, manufacturing and electrical sectors, contending the workplace delegates' clause inserted by the FWC failed to “provide for the exercise of the rights of workplace delegates” as set out in section 350C and the transitional requirements in the FW Act.

Employer organisations, including the Australian Industry Group, Master Builders, and Minerals Council opposed the applications.

Using the Black Coal Mining Industry Award 2020 (cl 29A) as the illustrative clause in its decision, the Full Federal Court determined in Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FCAFC 187 that the FWC made three errors in relation to the delegates rights clauses which are explored below:

1. the definition of “eligible employees” was confined to members “employed by the employer” and a representational clause was limited to those employees;

2. the communications clause was limited to communications “for the purpose of representing” industrial interests; and

3. a set of preconditions that required compliance with all employee duties and prohibited hindering normal work – each said to fetter or narrow the statutory rights.

Error 1: Enterprise-wide representational scope – not confined to the delegate’s employer

Clause 29A.5 of the delegates’ rights term relevantly provided that “a workplace delegate may represent the industrial interests of eligible employees who wish to be represented by the workplace delegate”. Those eligible employees were defined by reference to the following terms:

employer means the employer of the workplace delegate;

delegate’s organisation means the employee organisation in accordance with the rules of which the workplace delegate was appointed or elected; and

eligible employees means members and persons eligible to be members of the delegate’s organisation who are employed by the employer in the enterprise.

Consequently, the award term confined delegates to representing “eligible employees” employed by the same employer as the delegate. The Full Federal Court held that limiting delegates in this way was in error because:

• section 350C(1) defines a workplace delegate by reference to members who “work in a particular enterprise,”

• section 350C(2) entitles the delegate to represent those members and "any other persons eligible to be such members", including in disputes with their employer, without tethering the scope to the delegate’s employer; and

• Parliament decided to include particular terms in section 350C, all of which point to representation across the enterprise, not restricted by an employer's identity.

The Full Federal Court also noted that the Revised Explanatory Memorandum recognised representation of “all workers, not just employees,” who work at the enterprise, and held that the coverage and application provisions of the FW Act do not imply any limitation to persons employed by the delegate’s employer.

On this basis, confining representation was a jurisdictional error.

Error 2: Communications “in relation to industrial interests” are broader than communications “for the purpose of representing”

Under Clause 29A.6 of the delegates’ rights term:

(a) A workplace delegate may communicate with eligible employees for the purpose of representing their industrial interests under clause 29A.5. This includes discussing membership of the delegate’s organisation and representation with eligible employees.

(b) A workplace delegate may communicate with eligible employees during working hours or work breaks, or before or after work. [emphasis added]

As set out above, the award clause limited the communications right to communications “for the purpose of representing” industrial interests.

By contrast, section 350C(3)(a) confers a right to reasonable communication “in relation to [members’] industrial interests". The Applicant argued this would extend to an array of subject matters such as communications about trade union membership, industrial or employment matters, or health and safety matters, and should not be limited to communications whilst the delegate is engaged in representing the worker or in aid of a representative activity.

The Full Federal Court held the phrases above are materially different and the modern award term limits the entitlements of the workplace delegate, including because section 350C itself distinguishes communications “in relation to” industrial interests in section 350C(3)(a) from access rights conferred “for the purpose of representing” those interests in section 350C(3)(b).

It was not satisfied by attempts to salvage the clause as a simple grammatical, drafting error, given the limitation impermissibly narrowed a statutory right and could not be read down via section 142 or the modern awards objective.

Error 3: Absolute preconditions – compliance with all duties and “must not hinder normal work” – are impermissible fetters

Under Clause 29A.9(a) of the delegates’ rights term:

(a) A workplace delegate’s entitlements under clause 29A are subject to the conditions that the workplace delegate must, when exercising those entitlements:

(i) comply with their duties and obligations as an employee;

(ii) comply with the reasonable policies and procedures of the employer, including reasonable codes of conduct and requirements in relation to occupational health and safety and acceptable use of ICT resources;

(iii) not hinder, obstruct or prevent the normal performance of work; and

(iv) not hinder, obstruct or prevent eligible employees exercising their rights to freedom of association. [emphasis added]

As set out above, the award term imposed absolute conditions that delegates, when exercising their entitlements, must comply with. The unions argued that these absolute conditions went above the filter of reasonableness that applies to the rights conferred in section 350C and that these conditions impose absolute restrictions on the exercise of the delegates’ rights that render the performance of the delegates’ role impossible.

The Full Federal Court found that the filter of reasonableness provided for in section 350C authorises some express limitations in the provision of the workplace delegates’ entitlements. However, the cumulative obligations in the above clause extend beyond the filter of reasonableness to a place where the clause is fundamentally inconsistent with the grant of rights in section 350C.

Why the decision of the Full Federal Court matters for employers

The Full Federal Court found serious legal errors in the FWC’s approach and set aside the affected award clauses in ten modern awards, ordering the FWC to return to the clauses to ensure that the new delegates’ rights terms aligned with the minimum requirements set out in section 350C.

In responding to the decision, the Full Bench of the FWC updated the model delegates’ rights terms in modern awards, ensuring compliance with the Full Federal Court’s ruling and the FW Act as follows:

• The new award terms directly adopt the statutory definition of “workplace delegate” from section 350C(1) of the Fair Work Act, limiting any risk of narrowing or limiting the rights conferred by the legislation and ensures consistency across all modern awards.

• Workplace delegates are now expressly entitled to represent all eligible employees across the enterprise, not just those directly employed by the same employer which may be particularly significant for industries with labour hire or contracting arrangements.

• Delegates’ rights to communicate with workers are no longer limited to communications “for the purpose of representing” industrial interests. Instead, delegates may communicate “in relation to” industrial interests more broadly, reflecting the language and intent of section 350C.

• The obligation for delegates not to hinder, obstruct or prevent the normal performance of work now only applies when delegates are exercising their entitlements under the delegates’ rights term ensuring that conditions imposed on delegates are consistent with the “reasonableness” filter in the FW Act, rather than acting as blanket or absolute restrictions.

These new delegates’ rights terms have been inserted into all affected modern awards with effect from 1 July 2024. Employers must ensure compliance from that date, and any enterprise agreements approved since then will be assessed against the new standard.

The decision and subsequent steps taken by the Full Bench clarify the scope of workplace delegates rights and provide guidance for employers applying those modern awards and/or bargaining for new enterprise agreements.

Employers covered by modern awards

Employers should be aware of the changes and what this may mean for the rights of workplace delegates in their businesses, including the broader scope of rights and powers. In particular:

• Employers should be aware of the broader representational scope, which now includes all eligible workers in the enterprise, not just direct employees. This means, for example, that workplace delegates can represent workers on site regardless of labour hire or employment arrangements and may have widespread ramifications for particular industries where labour hire and contracting is prominent. Enterprise agreements and policies must align with this expanded remit while clearly defining employer-specific obligations.

• Delegates’ communication rights are also broader, allowing reasonable conversations about workplace matters beyond formal representation. Employers should ensure workplace policies and agreements accommodate these communications.

• Absolute restrictions on delegate activities, such as prohibitions on hindering normal work, must be replaced with reasonableness-based requirements to comply with the statutory framework.

• Finally, procedural mechanisms such as policies and codes of conduct are permitted, provided they do not detract from the statutory rights of workplace delegates. Employers should ensure that these mechanisms function as reasonable tools to support compliance rather than imposing additional thresholds that undermine the rights conferred by the FW Act.

Employers currently bargaining

In relation to employers currently bargaining for a new enterprise agreement, the decision to quash the variations inserting a delegates’ rights term in the modern awards and the FWC's implementation of a broader term has other consequences, including for the approval and content of enterprise agreements.

Section 205A(1) of the FW Act provides that an enterprise agreement must include a delegates’ rights term for workplace delegates to whom the agreement applies. Section 205A(2) provides that if, when an enterprise agreement is approved, the delegates’ rights term is less favourable than the delegates’ rights term in a relevant modern award(s), the term of the enterprise agreement has no effect and instead, the most favourable term of those modern awards is taken to be a term of the enterprise agreement. The new compliant model award clauses inserted by the FWC apply retrospectively from 1 July 2024, meaning that the benchmark for enterprise agreements under section 205A of the FW Act is restored and applies retrospectively.

We see two practical options available for employers:

• during bargaining, ensure the proposed delegates’ rights clauses meet or exceed the new award terms, which are now settled and backdated to 1 July 2024;

• be prepared to give undertakings, as the FWC has indicated it will approve agreements where employers give clear undertakings to guarantee delegates’ rights in line with the new legal requirements. Employers may be asked to provide an undertaking to ensure the relevant delegates’ rights clause meets the statutory minimum, helping to avoid approval delays and provide certainty.

Employers with "non-compliant" workplace delegates' rights terms

Finally, there will be a number of enterprise agreements with delegates' rights clauses that were approved prior to the Full Federal Court's decision, meaning they may have delegates' rights terms that are consistent with the previous award terms which have now been found to be unlawful.

For agreements approved on or after 1 July 2024, section 205A of the FW Act requires that the delegates’ rights term in an enterprise agreement must be at least as favourable as the relevant modern award term. The temporary absence of a compliant award term created uncertainty, however the FWC has finalised and backdated the new award clauses to 1 July 2024, which has restored the benchmark for comparison. This means that, for agreements approved from 1 July 2024 onwards, any delegates’ rights clause that is less favourable than the relevant award term (as at the date of approval) will have no effect, and the more favourable award term will be read into the agreement.